Debunking The Faulty Premises Of The Pirate Bay-Criminalization Treaty

from the this-again? dept

The entertainment industry's lobbying efforts for stronger intellectual property laws is incredibly sophisticated. The more you follow their efforts, the more impressive you realize they are. Every time one aspect is somehow blocked, another almost immediately pops up somewhere else that has been simmering below the surface for months. While many more are aware of efforts to directly lobby politicians to change copyright laws, what gets less attention is the work that's put into various "international trade" treaties. Two years ago we wrote about how this was a favorite tactic of the copyright lobby. They basically write up a treaty for the government, who then signs the treaty with a bunch of countries, without anyone realizing all of the details. Then the copyright lobby starts using the crutch that all of the countries involved have to strengthen their copyright laws in order to "comply with our international treaty obligations."

Kevin Stapp writes in to let us know about the latest such proposed treaty that has been leaked to Wikileaks. The document is (not surprisingly) a wishlist for the entertainment industry and, as Wikileaks notes, it was distributed only to pro-stronger-copyright lobbyists for comment, and not to any consumer rights groups or those who recognize that stronger copyright can be quite damaging. Slashdot talks about what Wikileaks calls the "Pirate Bay Killer" clause that would force countries to criminalize significant facilitation of infringement, even if it's not for profit. Why countries should be criminalizing what is, in actuality, a business model question is never explained.

However, there are many more problems with the paper, including the fact that many of its most basic assumptions are either untrue or unproven. When you base an entire international trade treaty on questionable (or outright incorrect) assumptions, bad things will result. It starts out by noting:

The proliferation of infringements of intellectual property rights ("IPR") particularly in the context of counterfeiting and piracy poises an ever-increasing threat to the sustainable development of the world economy

Except that two recent government studies have shown no such thing. Both the GAO and the OECD have noted that both the magnitude and the impact of counterfeiting is greatly exaggerated by lobbyists. The paper goes on:

The consequences of such IPR infringements includes (1) depriving legitimate businesses and their workers of income; (2) discouraging innovation and creativity; (3) threatens consumer health and safety; (4) providing an easy source of revenue for organized crime; and (5) loss of tax revenue.

Let's go through those one by one. On point (1), this is simply untrue. As we've pointed out in the past, there's no such thing as "depriving" someone else of income -- otherwise convincing someone to go to a pizza shop instead of a deli would be considered a crime (you've "deprived" the deli of income). Where money goes is a marketing issue, not a legal one. If companies are having trouble convincing people to pay them for their products, that's their business model problem. Nothing is being taken from them.

On point (2), this is also simply untrue. Study after study have shown no corresponding decrease in innovation or creativity when intellectual property laws are weakened (or even removed entirely). In this day and age when so much creativity takes place outside of traditional intellectual property realms, it seems ridiculous to even suggest that creativity is somehow impacted.

The closest the paper comes to having a reasonable point is on point (3), but that really only applies in very narrowly defined cases (specifically involving dangerous counterfeit products that may not be safe). Yet, that's an extremely narrow area, and can be dealt with via other means, including anti-fraud law. And, when dealing with international trade issue, it seems like the sort of thing that ought to be handled by customs, rather than with some big intellectual property treaty.

Point (4) is a favorite claim by the industry, but it's never been backed up with any significant evidence. I'm sure there are some organized crime groups that traffic in counterfeit products -- but again, that can and should be dealt with by other laws. Strengthening intellectual property laws to combat organized crime is a misuse of intellectual property laws.

The question of tax revenue (5) is also a favorite of the industry that relies on only counting the ripple effects in one direction. That is, it assumes that the lost tax dollars come from things like the sales tax on software products that would be bought, but fails to count the economic growth and additional tax from businesses who are able to more rapidly grow the economy through the use of cheaper software.

So the entire underpinning for the argument in favor of these "trade agreements" is a house of cards (if that much). But for those who aren't all that familiar with the space (or whose political campaigns are funded by the entertainment industry), these claims are all taken as a given. That should be seen as a serious problem.